U.S. v. Wenzel
| Decision Date | 02 March 2005 |
| Docket Number | Civil Action No. 04-212 Erie.,Criminal Action No. 99-33 Erie. |
| Citation | 359 F.Supp.2d 403 |
| Parties | UNITED STATES of America v. Joseph C. WENZEL, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Joseph C. Wenzel, Jr., White Deer, PA, pro se.
Presently pending before this Court is a motion by Defendant Joseph C. Wenzel to set aside his sentence pursuant to 28 U.S.C. § 2255.1 For the reasons set forth below, Wenzel's motion will be denied.
In November of 1999, Rena "Tracy" Seyfert and Joseph C. Wenzel were named as defendants in a four-count indictment returned by a federal grand jury in Erie, Pennsylvania. Seyfert was charged with unlawful conversion of surplus federal government property in violation of 18 U.S.C. § 641 and attempting to persuade a witness to provide false information to FBI agents in violation of 18 U.S.C. § 1513(b)(3). Wenzel was charged with one count each of conspiracy and attempt to persuade a witness to provide false information to FBI agents. Wenzel was initially released on bond; however, within two days, the government filed a motion to detain him.
On November, 10, 1999, a detention hearing was held before the Magistrate Judge. At that hearing, Wenzel's brother and another individual each testified that Wenzel had threatened the life of one Harold "Frosty" Crane, the subject of the attempted witness tampering. Wenzel's bond was revoked two days later after the Magistrate found there was probable cause to believe that Wenzel had committed the crime of soliciting murder and there was clear and convincing evidence that he had violated the conditions of his release.
On January 24, 2000, Wenzel pleaded guilty to both the conspiracy and attempt charges as part of a negotiated plea deal. The plea agreement, which was made part of the record, provided in relevant part as follows:
The parties stipulate that the government would retain and reserve its right to argue, if appropriate, for an upward departure from the applicable Sentencing Guidelines based on JOSEPH WENZEL's conduct which allegedly occurred subsequent to the return of the indictment on November 3, 1999. The parties also stipulate that the government will not file additional charges against defendant JOSEPH WENZEL based upon the conduct which was the subject of the bond revocation hearing held on November 10, 1999. This stipulation represents the parties' best understanding on the basis of the information available as of the date of this agreement. The stipulation is not binding on the District Court and does not preclude either party from bringing to the attention of the United States Probation Office or the District Court any information not within his knowledge at the time this agreement executed.
In anticipation of his sentencing, Wenzel filed a motion for a downward departure relative to the calculation of his criminal history category. In response, the government asserted its own motion for an upward departure based on evidence it intended to introduce establishing that Wenzel, following his bond revocation, solicited others to kill his brother and a federal prosecutor and also made statements about killing an FBI agent and Seyfert's counsel.
Wenzel's initial sentencing took place on May 15, 2000. At the outset, this Court assigned Wenzel a total offense level of 12 in criminal history category III, resulting in a sentencing range of 15 to 21 months' incarceration. Then, in support of its motion for an upward departure, the government presented the testimony of various individuals who had been incarcerated with Wenzel following the revocation of his bond, each of whom had allegedly heard Wenzel make threats against the aforementioned targets and/or were solicited by Wenzel to commit murder.
At the conclusion of the testimony, this Court found that the government had proved the allegations supporting an upward departure by clear and convincing evidence. Recounting in detail the pertinent credible testimony, we specifically concluded that Wenzel had indeed threatened or solicited the murder of multiple victims, including government officials. Characterizing Wenzel's conduct as a "pernicious attempt to avoid conviction at any cost," we found that it fell outside the heartland of the guidelines and merited an upward departure. In determining the extent of the departure, we considered the range applicable to two analogous guidelines: § 2A1.5, which governs conspiracy or solicitation to commit murder, and § 2J1.2, which governs offenses involving obstruction of justice. Applying § 2A1.5 with all relevant adjustments, this Court calculated an overall offense level of 39. Applying § 2J1.2, the Court arrived at an overall offense level of 25. The Court then opted to apply an offense level of 29 which, in light of Wenzel's Category III criminal history assignment, produced a sentence range of 108 to 135 months. The Court sentenced Wenzel at the top of the range, imposing consecutive terms of incarceration for 50 months at Count 2 and 75 months on Count IV, to be followed by a 3-year term of supervised release.
On direct appeal, Wenzel's sole argument was that the Court's imposition of an upward departure was not supported by clear and convincing evidence. Wenzel maintained that the record failed to support a finding that he had engaged in the alleged threats and solicitations, since the government's witnesses had admitted that they did not take Wenzel seriously and considered him a "blowhard." The Third Circuit Court of Appeals concluded that the departure was consistent with the sound exercise of this Court's judicial discretion and affirmed the sentence.
Wenzel subsequently filed a timely motion to vacate his sentence under 28 U.S.C. § 2255, alleging that: (a) the Court's calculation of analogue guidelines was erroneous and his sentencing counsel was ineffective in failing to recognize and/or object to this error; (b) the government had presented testimony at the sentencing hearing concerning information provided by one Paul Cooper which it knew or should have known was false; and (c) the government failed to disclose impeachment material relative to Mr. Cooper. This Court ultimately ruled that the offense level utilized under one of the relevant sentencing analogues had been erroneously computed2 and that Wenzel's sentencing counsel had been ineffective in failing to challenge this error. The Court further concluded that this misapplication of the guidelines presumptively prejudiced Wenzel, requiring his sentence to be vacated.
Accordingly, this Court held a second sentencing hearing on August 6, 2002. At this re-sentencing, the government once again moved for an upward departure based upon Wenzel's various threats and solicitations of murder. Wenzel presented new evidence in an attempt to undermine the credibility of Mr. Cooper and William Maden, both whom had testified for the government at the original sentencing hearing. After hearing the new evidence, this Court found that while Cooper was no longer a credible witness, Maden still was, and the record fairly established — by clear and convincing evidence — adequate grounds for a substantial upward departure. Turning to the guidelines calculations, we next determined that the proper offense level using the § 2J1.2 analogue for obstruction of justice was 26. We had previously determined, in the context of Wenzel's first § 2255 motion, that the offense level using the § 2A1.5 analogue should be 36, rather than 39 as this Court had originally assumed. (See n. 2, supra.) Having considered these two analogues, we assigned an offense level of 27 to Wenzel's conduct which, when applied to criminal history category III, produced a sentencing range of 87 to 108 months. This Court then imposed a sentence of 107 months of imprisonment (consecutive terms of 60 months at Count 2 and 47 months at Count 4), to be followed by a 3-year period of supervised release.
Wenzel again appealed his sentence, arguing that this Court erred in various respects by continuing to credit the testimony of William Maden. The Court of Appeals rejected Wenzel's arguments and affirmed his sentence in an opinion rendered on July 31, 2003.
Wenzel's time for filing a petition for certiorari expired on October 29, 2003, and his conviction therefore became final as of that date.3 On July 22, 2004, Wenzel timely filed the § 2255 motion which is now before the Court.4
Wenzel's present § 2255 motion is premised on the theory that his constitutional rights were violated when this Court imposed a 15-level enhancement based on its findings that Wenzel had made threats and/or solicited murder. Wenzel contends that, because these facts were not proved to a jury beyond a reasonable doubt, the Court's upward departure violates the teachings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In addition, Wenzel maintains that his prior counsel was ineffective in failing to assert this argument. In order to properly evaluate Wenzel's § 2255 claims, we first review the Supreme Court's rulings in Apprendi, Blakely, and, most recently, United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
In Apprendi, the Supreme Court considered the constitutionality of a New Jersey hate crime statute that permitted the trial judge to impose an extended term of imprisonment upon making a factual determination, based upon a preponderance of the evidence, that the defendant acted with a purpose to intimidate another person because of the person's race. Following Apprendi's guilty plea to second-degree possession of a firearm for an unlawful purpose — a crime carrying a prison term of 5 to 10 years — the trial judge found by a preponderance of the evidence that Apprendi's conduct was...
To continue reading
Request your trial
-
U.S. v. Polishan
...States, Nos. 04 Civ. 8856(JGK) and 01 CR. 38-01(JGK), 2006 WL 1663283, at *2 (S.D.N.Y. June 14, 2006); United States v. Wenzel, 359 F.Supp.2d 403, 411-12 & n. 9 (W.D.Pa.2005); United States v. Walls, 215 F.Supp.2d 159, 165 11. This statement in Mr. Polishan's brief is not entirely accurate.......
-
Armstrong v. U.S.
...Cir.2005). Federal district courts in Pennsylvania and six other states have concluded Booker is not retroactive. United States v. Wenzel, 359 F.Supp.2d 403 (W.D.Pa.2005); United States v. Aikens, 358 F.Supp.2d 433, 441 (E.D.Pa.2005); Jaffe v. United States, Slip Copy, 2005 WL 589330 (D.Uta......